Op/Ed

Pardoning Arpaio: The Power Is Not the Right

Posted August 26, 2017 11:20 pm | Op-Ed

By
Kary Love

The Constitution is the supreme law and supreme over
Congress and the President: it says so. The Constitution
is the great charter of the American people by which
they, not their agents in office, control their
government within its proper bounds.

America is a “nation of laws,” not the whims of
people who occupy elected office. If America is a
nation of the whims of the elected, it is a nation where
some people are above the law. That is un-American.

The Constitution gives the President the power to
pardon.

The Constitution was represented to the American
people by its supporters in explanatory essays called
the “Federalist Papers.” The American people have the
right to rely on the Federalist Papers to gain insight
into the Constitution, both back when the people were
voting on it and today.

All government agents, including Presidents and
police, swear an oath, usually to God, to support the
Constitution. The founders believed most persons
who took such an oath would not lie before God.
The character of those taking the oath may be measured
by their fidelity to it and upon that the people may
judge them.

Alexander Hamilton argued in Federalist
No, 74, that the pardon power is a “benign
prerogative” to be exercised in the interests of the
“tranquility of the commonwealth.”

All of a president’s actions are subject to the
overall commitments made in his Oath of Office and to
the Constitution. Hamilton contended that the
individual occupying the Office of the President could
be trusted to act on this extraordinary authority with a
“sense of responsibility” marked by “scrupulousness and
caution, prudence and good sense,” and “circumspection.”

Having risked their lives and having had friends
actually die to achieve independence, men like Hamilton
were apparently more dedicated to the Constitution than
some of later generations. They believed no one elected
President would have such a defect of character to swear
an oath before God only to violate it by acts
inconsistent with the blood of patriots.

It is right for the people, for whom the President is
an agent elected to uphold the Constitution, to judge
any President’s exercise of the pardon power and ask:
was it used consistent with the Constitution? If
the answer is no, the people ought to hold that
President accountable for violating his Oath and the
Constitution.

The pardon of former Arizona Sheriff Arpaio is
troubling against this backdrop.

Police officers, like Arpaio, also swear an oath to
the Constitution. This means, among other things,
they swear to respect the rights of the people under the
Constitution, the laws Congress makes, and the rulings
of federal Courts. That is how the Constitution says our
government is to work.

Mr. Arpaio was found guilty by a federal court of
criminal contempt of court for defying a court order to
stop detaining suspected undocumented immigrants.

The criminal charge grew out of a lawsuit filed a
decade ago charging that the sheriff’s office regularly
violated the rights of Latinos, stopping people based on
racial profiling, detaining them based solely on the
suspicion that they were in the country illegally, and
turning them over to the immigration authorities. These
charges were proven to the satisfaction of a Judge.

Another federal district court judge, G. Murray
Snow, ordered
the sheriff in 2011 to halt detention based solely
on suspicion of a person’s immigration status when there
was no evidence that a state law had been broken. An
appeals court upheld that ruling and Judge Snow later
reinforced it with other orders.

Mr. Arpaio had his day in court several times. He
lost several times.

Mr. Arpaio had a duty to the law when he voluntarily
swore an oath to the Constitution. Mr. Arpaio, having
lost in court, could have brought his behavior into
compliance with what several courts had ruled were
constitutional bounds. He chose not to do so.
When he persisted in violating the Constitution, the
court, which also has a duty to the Constitution, held
him in contempt.

By pardoning Mr. Arpaio, President Trump appears to
endorse Mr. Arpaio’s actions, which are contrary to the
Constitution. The office of the President carries
relatively narrow duties reflected in the oath of
office:

"I do solemnly swear (or affirm) that I
will faithfully execute the Office of President of the
United States, and will to the best of my ability,
preserve, protect and defend the Constitution of
the United States."

Pardoning law enforcement officers who violate the
Constitution undermines the very law enforcement that
exists to preserve and protect the Constitution.

When a President grants a pardon, the President opens
to the scrutiny of the people his fidelity to the
Constitution.

The people ought to ask themselves: to what extent
does this pardon encourage contempt for the
Constitution? Is such a pardon consistent with the
Constitutional parameters of a nation of laws?

The American people ultimately determine the
character of America. It is up to them: will
America be a nation of laws or of the whims of men?